What Force the Supreme Law has over the King

Lex Rex [Law Is King, or The Law & The Prince] (1644)

Samuel Rutherford

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QUESTION 25What Force the Supreme Law has over the King, Even That Law of the People’s Safety, Called “Salus Populi“

The law of the twelve tables is, salus populi, suprema lex. The safety of the people is the supreme and cardinal law to which all laws are to stoop. And that from these reasons: 

1. Originally: Because if the people be the first author, fountain and efficient under God, of law and king, then their own safety must be principally sought, and their safety must be far above the king, as the safety of a cause, especially of an universal cause, such as is the people, must be more than the safety of one, as Aristotle says, (1. 3. polit., alias l. 5,) ou0 mh/ti pefnki to\ me/roj u9pere/xwn tou~ panto\j  “The part cannot be more excellent than the whole;” nor the effect above the cause.

2. Finaliter. This supreme law must stand; for if all law, policy, magistrates and power be referred to the people’s good as the end, (Rom. 13:4,) and to their quiet and peaceable life in godliness and honesty, then must this law stand, as of more worth than the king, as the end is of more worth than the means leading to the end, for the end is the measure and rule of the goodness of the mean; and, finis ultimus in influxu est potentissimus, the king is good, because he conduces much for the safety of the people; therefore, the safety of the people must be better.

3. By way of limitation: because no law in its letter has force where the safety of the subject is in hazard; and if law or king be destructive to the people they are to be abolished. This is clear in a tyrant or a wicked man.

4. In the desires of the most holy: Moses, a prince, desired for the safety of God’s people, and rather than God should destroy his people, that his name should be rased out of the book of life; and David says, (1 Chron. 21:17,) “Let thine hand, I pray thee, O Lord my God, be on me, and on my father’s house; but not on thy people, that they should be plagued.” This being a holy desire of these two public spirits, the object must be in itself true, and the safety of God’s people and their happiness must be of more worth than the salvation of Moses and the life of David and his father’s house.

The Prelate (c. 16, p. 159) borrows an answer to this  for he has none of his own  from Dr Ferne (sect. 7, p. 28): The safety of the subjects is the prime end of the constitution of government; but it is not the sole and adequate end of government in monarchy; for that is the safety of both king and people. And it beseems the king to proportion his laws for their good; and it becomes the people to proportion all their obedience, actions, and endeavors for the safety, honor, and happiness of the king. It is impossible the people can have safety when sovereignty is weakened.

Ans.  The Prelate would have the other half of the end, why a king is set over a people, to be the safety and happiness of the king, as well as the safety of the people. This is new logic indeed, that one and the same thing should be the mean and the end. The question is, For what end is a king made so happy as to be exalted king? The Prelate answers, He is made happy that he may be happy, and made a king that he may be made a king. Now, is the king, as king, to intend this half end? that is, whether or no accepts he the burden of setting his head and shoulders under the crown, for this end, that he may not only make the people happy, but also that he may make himself rich and honorable above his brethren, and enrich himself? I believe not; but that he feed the people of God; for if he intend himself, and his own honor, it is the intention of the man who is king, and intentio operantis, but it is not the intention of the king, as the king, or intentio operis. The king, as a king, is formally and essentially the “minister of God for our good,” (Rom. 13:4; 1 Tim. 2:2,) and cannot come under any notion as a king, but as a mean, not as an end, nor as that which he is, to seek himself. I conceive God did forbid this in the molding of the first king. (Deut. 17:18, 19, 26.) He is a minister by office, and one who receives honor and wages for this work, that, ex officio, he may feed his people. But the Prelate says, the people are to intend his riches and honor. I cannot say but the people may intend to honor the king; but the question is not, whether the people be to refer the king and his government as a mean to honor the king?

I conceive not. But that end which the people, in obeying the king, in being ruled by him, may intend, is, (1 Tim. 2:2,) “That under him they may lead a quiet and peaceable life, in all godliness and honesty.” And God’s end in giving a king is the good and safety of his people.

P. Prelate (c. 16, p. 160).  To reason from the one part and end of monarchical government  the safety of the subjects, to the destruction and weakening of the other part of the end  the power of sovereignty and the royal prerogative, is a caption a divisis. If the king be not happy, and invested with the full power of a head, the body cannot be well. By anti-monarchists, the people at the beginning were necessitated to commit themselves, lives and fortunes, to the government of a king, because of themselves they had not wisdom and power enough to do it; and therefore, they enabled him with honor and power, without which, he could not do this, being assured that he could not choose, but most earnestly and carefully endeavor this end, to wit, his own and the people’s happiness; therefore, the safety of the people issues from the safety of the king, as the life of the natural body from the soul. “Weak government is near to anarchy. Puritans will not say, Quovis modo esse, etiam pnale, is better than non esse: the Scripture says the contrary; it were better for some never to have been born than to be. Tyranny is better than no government.

Ans. 1.  He knows not sophisms of logic who calls this argument a divisis; for the king’s honor is not the end of the king’s government. He should seek the safety of state and church, not himself; himself is a private end, and a step to tyranny.

2. The Prelate lies when he makes us to reason from the safety of the subject to the destruction, of the king. Ferne, Barclay, Grotius, taught the hungry scholar to reason so. Where read he this? The people must be saved, that is the supreme law, therefore, destroy the king. The devil and the Prelate both shall not fasten this on us. But thus we reason: when the man who is the king endeavors not the end of his royal place, but, through bad counsel, the subversion of laws, religion, and bondage of the kingdom, the free estates are to join with him for that end of safety, according as God has made them heads of tribes and princes of the people; and if the king refuse to join with them, and will not do his duty, I see not how they are in conscience liberated before God from doing their part.

3. If the P. Prelate call resisting the king by lawful defensive wars, the destruction of the head, he speaks with the mouth of one excommunicated and delivered up to Satan.

4. We endeavor nothing more than the safety and happiness of the king, as king; but his happiness is not to suffer him to destroy his subjects, subvert religion, arm papists who have slaughtered above two hundred thousand innocent protestants, only for the profession of that true religion which tho king has sworn to maintain. Not to rise in arms to help the king against these were to gratify him as a man, but to be accessory to his soul’s destruction as a king.

5. That the royal prerogative is the end of a monarchy ordained by God, neither Scripture, law, nor reason can admit.

6. The people are to intend the safety of other judges as well as the king’s. If parliaments be destroyed, whose it is to make laws and kings, the people can neither be sale, free to serve Christ, nor happy.

7. It is a lie that people were necessitated at the beginning to commit themselves to a king; for we read of no king while Nimrod arose: fathers of families (who were not kings), and others, did govern till then.

8. It was not want of wisdom, (for in many, and in the people, there must be more wisdom than in one man,) but rather corruption of nature and reciprocation of injuries that created kings and other judges.

9. The king shall better compass his end, to wit, the safety of the people, with limited power, (placent mediocria,) and with other judges added to help him, (Num. 2:14, 16; Deut. 1:12-15,) than to put in one man’s hand absolute power; for a sinful man’s head cannot bear so much new wine, such as exorbitant power is.

10. He is a base flatterer who says, The king cannot choose, but earnestly and carefully endeavor his own and the people’s happiness; that is, the king is an angel, and cannot sin and decline from the duties of a king. Of the many kings of Judah and Israel, how many chose this? All the good kings that have been may be written in a gold ring.

11. The people’s safety depends indeed on the king, as a king and a happy governor; but the people shall never be fattened to eat the wind of an imaginary prerogative royal.

12. Weak government, that is, a king with a limited power, who has more power about his head than within his head, is a strong king, and far from anarchy.

13. I know not what he means, but his master Arminius’s way and words are here, for Arminians say,1 “That being in the damned, eternally tormented, is no benefit; it were better they never had being than to be eternally tormented;” and this they say to the defiance of the doctrine of eternal reprobation, in which we teach, that though by accident, and because of the damned’s abuse of being and life, it were to them better not to be, as is said of Judas, yet simpliciter comparing being with non-being, and considering the eternity of miserable being in relation to the absolute liberty of the Former of all things, who makes use of the sinful being of clay-vessels for the illustration of the glory of his justice and power, (Rom. 9:17, 22; 1 Pet. 2:8; Jude v. 4,) it is a censuring of God and his unsearchable wisdom, and a condemning of the Almighty of cruelty, (God avert blasphemy of the unspotted and holy Majesty,) who, by Arminian grounds, keeps the damned in life and being, to be fuel eternally for Tophet, to declare the glory of his justice. But the Prelate behooved to go out of his way to salute and gratify a proclaimed enemy of free grace, Arminius, and hence he would infer that the king, wanting his prerogative royal and fulness of absolute power to do wickedly, is in a penal and miserable condition, and that it were better for the king to be a tyrant, with absolute liberty to destroy and save alive at his pleasure, as is said of a tyrant, (Dan. 5:19,) than to be no king at all. And here consider a principle of royalists’ court faith: 

(1.) The king is no king, but a lame and miserable judge, if he have not irresistible power to waste and destroy. (2.) The king cannot be happy, nor the people safe, nor can the king do good in saving the needy, except he have the uncontrollable and unlimited power of a tyrant to crush the poor and needy, and lay waste the mountain of the Lord’s inheritance. Such court-ravens who feed upon the souls of living kings, are more cruel than ravens and vultures, who are but dead carcases.

Williams, bishop of Ossory, answers to the maxim, Salus populi, etc. “No wise king but will carefully provide for the people’s safety, because his safety and honor is included in theirs, his destruction in theirs.” And it is, says Lipsius, egri animi proprium nihil diu pati. Absalom was persuaded there was no justice in the land when he intends rebellion; and the poor Prelate, following him, spends pages to prove that goods, life, chastity, and fame, depends on the safety of the king, as the breath of our nostrils, our nurse-father, our head, corner-stone, and judge (c. 17, 8, 18, 1). The reason why all disorder was in church and state was not because there was no judge, no government; none can be so stupid as to imagine that. But because,

(1.) They wanted the most excellent of governments, (2.) Because aristocracy was weakened so as there was no right. No doubt priests there were, but (Hos. 4) either they would not serve, or were over-awed. No doubt in those days they had judges, but priests and judges were stoned by a rascally multitude, and they were not able to rule; therefore it is most consonant to Scripture to say, Salus regis suprema populi salus, the safety of the king and his prerogative royal is the safest sanctuary for the people.” So Hos. 3:4; Lament, 2:9.

Ans. 1.  The question is not of the wisdom, but of the power of the king, if it should be bounded by no law.

2. The flatterer may know, there be more foolish kings in the world than wise, and that kings misled with idolatrous queens, and by name Ahab ruined himself, and his posterity and kingdom.

3. The salvation and happiness of men standing in the exalting of Christ’s throne and the gospel, therefore every king and every man will exalt the throne; and so let them have an uncontrollable power, without constraint of law, to do what they list, and let no bounds be set to kings over subjects. By this argument their own wisdom is a law to lead them to heaven.

4. It is not Absalom’s mad malcontents in Britain, but there were really no justice to protestants,  all indulgence to papists, popery, Arminianism,  idolatry printed, preached, professed, rewarded by authority, parliaments and church assemblies; the bulwarks of justice and religion were denied, dissolved, crushed, etc.

5. That by a king he understands a monarch, (Judg. 17) and that such a one as Saul, of absolute power, and not a judge, cannot be proved, for there were no kings in Israel in the judges’ days,  the government not being changed till near the end of Samuel’s government.

6. And that they had no judges, he says, it is not imaginable. But I rather believe God than the Prelate. Every one did what was right in his own eyes, because there was none to put ill-doers to shame. Possibly the estates of Israel governed some way for mere necessity, but wanting a supreme judge, which they should have, they were loose; but this was not because where there is no king, as P. P. would insinuate, there was no government, as is dear.

7. Of tempered and limited monarchy I think as honorably as the Prelate, but that absolute and unlimited monarchy is more excellent than aristocracy, I shall then believe when royalists shall prove such a government, in so far as it is absolute, to be of God.

8. That aristocracy was now weakened I believe not, seeing God so highly commends it, and calls it his own reigning over his people. (1 Sam. 8:7.) The weakening of it through abuse is not to a purpose, more than the abuse of monarchy.

9. No doubt, says he, (Hos. 4) they were priests and judges, but they were over-awed, as they are now. I think he would say, (Hos. 3:4,) otherwise he cites Scripture sleeping, that the priests of AntiChrist be not only over-awed, but out of the earth. I yield that the king be limited, not over-awed, I think God’s law and man’s law allows.

10. The safety of the king, as king, is not only safety, but a blessing to church and state, and therefore this P. Prelate and his fellows deserve to be hanged before the sun, who have led him on a war to destroy him and his protestant subjects. But the safety and flourishing of a king, in the exerases of an arbitrary unlimited power against law and religion, and to the destruction of his subjects, is not the safety of the people, nor the safety of the king’s soul, which these men, if they be the priests of the Lord, should care for.

The Prelate comes to refute the learned and worthy Observator. The safety of the people is the supreme law, therefore the king is bound in duty to promote all and every one of his subjects to all happiness. The Observator has no such inference, the king is bound to promote some of his subjects, even as king, to a gallows, especially Irish rebels, and many bloody malignants. But the Prelate will needs have God. rigorous (hallowed be his name) if it be so; for it is impossible to the tenderest-hearted father to do so. Actual promotion of all is impossible. That the king intend it of all his subjects, as good subjects, by a throne established on righteousness and judgment is that which the worthy Observator means. Other things here are answered.

The sum of his second answer is a repetition of what he has said. I give my word, in a pamphlet of one hundred and ninety-four pages, I never saw more idle repetitions of one thing twenty times before said; but (p. 168) he says, “The safety of the king and his subjects, in the moral notion, may be esteemed morally the same, no less than the soul and the body make one personal subsistence.”

Ans.  This is strange logic. The king and his subjects are ens per aggregationem, and the king, as king, has one moral subsistence, and the people another. has the father and the son, the master and the servant, one moral subsistence? But the man speaks of their well-being, and then he must mean that our king’s government  that was not long ago, and is yet, to wit, the popery, Arminianism, idolatry, cutting off men’s ears and noses, banishing, imprisonment for speaking against popery, arming of papists to slay protestants, pardoning the blood of Ireland, that I fear, shall not be soon taken away, etc.,  is identically the same with the life, safety, and happiness of protestants. Then life and death, justice and injustice, idolatry and sincere worship, are identically one, as the soul of the Prelate and his body are one.

The third is but a repetition. The acts of royalty (says the Observator) are acts of duty and obligation, therefore, not acts of grace properly so called; therefore we may not thank the king for a courtesy. This is no consequence. What fathers do to children are acts of natural duty and of natural grace, and yet children owe gratitude to parents, and subjects to good kings, in a legal sense. No, but in way of courtesy only. The observator said, the king is not a father to the whole collective body, and it is well said he is son to them, and they his maker. Who made the king? Policy answers, The state made him, and divinity, God made him.

The Observator said well, the people’s weakness is not the king’s strength. The Prelate says, Amen. He said. That that perishes not to the king, which is granted to the people. The Prelate (p. 170) denies, because, what the king has in trust from God, the king cannot make away to another, nor can any take it from him without sacrilege.

Ans.  True indeed, if the king had royalty by immediate trust and infusion by God, as Elias had the spirit of prophecy, that he cannot make away. Royalists dream that God, immediately from heaven, now infuses faculty and right to crowns without any word of God. It is enough to make an enthusiast leap up to the throne and kill kings. Judge if these fanatics be favorers of kings. But if the king have royalty mediately, by the people’s free consent, from God, there is no reason but people give as much power, even by ounce weights, (for power is strong wine and a great mocker,) as they know a weak man’s head will bear, and no more. Power is not an immediate inheritance from heaven, but a birthright of the people borrowed from them; they may let it out for their good, and resume it when a man is drunk with it. The man will have it conscience on the king to fight and destroy his three kingdoms for a dream, his prerogative above law. But the truth is, prelates do engage the king, his house, honor, subjects, church, for their cursed miters.

The Prelate (p. 172) vexes the reader with repetitions, and says, The king must proportion his government to the safety of the people on the one hand, and to his own safety and power on the other hand.

Ans.  What the king does as king, he does it for the happiness of his people. The king is a relative; yea, even his own happiness that he seeks, he is to refer to the good of God’s people. He says farther, The safety of the people includes the safety of the king, because the word populus is so taken; which he proves by a raw, sickly rabble of words, stolen out of Passerat’s dictionary. His father, the schoolmaster, may whip him for frivolous etymologies.

This supreme law, says the Prelate, (p. 175,) is not above the law of prerogative royal, the highest law, nor is rex above lex. The democracy of Rome had a supremacy above laws, to make and unmake laws; and will they force this power on a monarch, to the destruction of sovereignty?

Ans.  This, which is stolen from Spalato, Barclay, Grotius, and others, is easily answered. The supremacy of people is a law of nature’s self-preservation, above all positive laws, and above the king, and is to regulate sovereignty, not to destroy it. If this supremacy of majesty was in people before they have a king, then, 1. They lose it not by a voluntary choice of a king; for a king is chosen for good, and not for the people’s loss, therefore, they must retain this power, in habit and potency, even when they have a king. 2. Then supremacy of majesty is not a beam of divinity proper to a king only. 3. Then the people, having royal sovereignty virtually in them, make, and so unmake a king,  all which the Prelate denies.

This supreme law (says the Prelate, p. 176, begging it from Spalato, Arnisaeus, Grotius) advances the king, not the people; and the sense is, the kingdom is really some time in such, a case that the sovereign most exercise an arbitrary power, and not stand upon private men’s interests, or transgressing of laws made for the private good of individuals, but for the preservation of itself, and the public, may break through all laws. This he may, in the case when sudden foreign invasion threatens ruin inevitably to king and kingdom: a physician may rather cut a gangrened member than suffer the whole body to perish. The dictator, in case of extreme dangers, (as Livy and Dion. Halicarnast show us,) had power according to his own arbitrament, had a sovereign commission in peace and war, of life, death, persons, etc., not co-ordinate, not subordinate to any.

Ans. 1.  It is not an arbitrary power, but naturally tied and fettered to this same supreme law, salus populi, the safety of the people, that a king break through not the Law, but the letter of the law, for the safety of the people; as the chirurgeon, not by any prerogative that he has above the art of chirurgery, but by necessity, cuts off a gangrened member. Thus it is not arbitrary to the king to save his people from ruin, but by the strong and imperious law of the people’s safety he does it; for if he did it not, he were a murderer of his people. 2. He is to stand upon transgression of laws according to their genuine sense of the people’s safety; for good laws are not contrary one to another, though, when he breaks through the letter of the law, yet he breaks not the law; for if twenty thousand rebels invade Scotland, he is to command all to rise, though the formality of a parliament cannot be had to indict the war, as our law provides; but the king does not command all to rise and defend themselves by prerogative royal, proper to him as king, and incommunicable to any but to himself.

1. There is no such din and noise to be made for a king and his incommunicable prerogative; for .though the king were not at all, yea, though he command the contrary, (as he did when he came against Scotland with an English army,) the law of nature teaches all to rise, without the king.

2. That the king command this as king, is not a particular positive law; but he does it as a man and a member of the kingdom. The law of nature (which knows no dream of such a prerogative) forces him to it, as every member is, by nature’s indictment, to care for the whole.

3. It is poor hungry skill in this new statist, (for so he names all Scotland,) to say that any laws are made for private interests, and the good of some individuals. Laws are not laws if they be not made for the safety of the people.

4. It is false that the king, in a public danger, is to care for himself as a man, with the ruin and loss of any; yea, in a public calamity, a good king, as David, is to desire he may die that the public may be saved, 2 Sam. 24:17; Exod. 32:32. It is commended of all, that the emperor Otho, yea, and Richard II of England, as M. Speed says (Hist. of England, p. 757,) resigned their kingdoms to eschew the effusion of blood.

The Prelate advises the king to pass over all laws of nature, and slay thousands of innocents, and destroy church and state of three kingdoms, for a straw, and supposed prerogative royal.

1. Now, certainly, prerogative and absoluteness to do good and ill, must be inferior to a law, the end whereof is the safety of the people. For David wills the pestilence may take him away, and so his prerogative, that the people may be saved (2. Sam. 24:17); for prerogative is cumulative to do good, not privative to do ill; and so is but a mean to defend both the law and the people.

2. Prerogative is either a power to do good or ill, or both. If the first be said, it must be limited by the end and law for which it is ordained. A mean is no farther a mean, but in so far as it conduces to the end, the safety of all. If the second be admitted, it is license and tyranny, not power from God. If the third be said, both reasons plead against this, that prerogative should be the king’s end in the present wars.

3. Prerogative being a power given by the mediation of the people; yea, suppose (which is raise) that it were given immediately of God, yet it is not a thing for which the king should raise, war against his subjects; for God will ask no more of the king than he gives to him. The Lord reaps not where he sows not. If the militia, and other things, be ordered hitherto for the holding off Irish and Spanish invasion by sea, and so for the good of the land, seeing the king in his own person cannot make use of the militia, he is to rejoice that his subjects are defended. The king cannot answer to God for the justice of war on his part. It is not a case of conscience that the king should shed blood for, to wit, because the under-officers are such men, and not others of his choosing, seeing the kingdom is defended sufficiently except where cavaliers destroy it. And to me this is an unanswerable argument, that the cavaliers destroy not the kingdoms for this prerogative royal, as the principal ground, but for a deeper design, even for that which was working by prelates and malignants before the late troubles in both kingdoms.

4. The king is to intend the safety of his people, and the safety of the king as a governor; but not as this king, and this man Charles,  that is a selfish end. A king David is not to look to that; for when the people was seeking his life and crown, he says, (Psal. 3:8,) “Thy blessing upon thy people.” He may care for, and intend that the king and government be safe; for if the kingdom be destroyed, there cannot be a new kingdom and church on earth again to serve God in that generation, (Psal. 89:47.) but they may easily have a new king again; and so the satety of the one cannot in reason be intended as a collateral end with the safety of the other; for there is no imaginable comparison between one man, with all his accidents of prerogative and absoluteness, and three national churches and kingdoms. Better the king weep for a childish trifle of a prerogative than that popery be erected, and three kingdoms be destroyed by cavaliers for their own ends.

5. The dictator’s power is,

(1.) A tact, and proves not a point of conscience. (2.) His power was in an exigence of extreme danger of the commonwealth. The P. Prelate pleadeih for a constant absoluteness above laws to the kin or at all times, and that jure divino,(3.) The dictator was the people’s creature; therefore the creator, the people, had that sovereignty over him. (4.) The dictator was not above a king; but the Romans ejected kings. (5.) The dictator’s power was not to destroy a state: he might be, and was resisted; he might be deposed.

P. Prelate (p. 177).  The safety of the people is pretended as a law, that the Jews must put Christ to death, and that Saul spared Agag.

Ans. 1.  No shadow for either in the word of God. Caiaphas prophesied, and knew not what he said; but that the Jews intended the salvation of the elect, in killing Christ, or that Saul intended a public good in sparing Agag, shall be the Prelate’s divinity, not mine. 2. What, howbeit many should abuse this law of the people’s safety, to wrong good kings, it ceases not therefore to be a law, and licenses not ill kings to place a tyrannical prerogative above a just dictate of nature.

In the last chapter (c. 16) the Prelate has no reasons, only he would have kings holy, and this he proves from Apocrypha books, because he is ebb in Holy Scripture; but it is Romish holiness, as is clear, 

(1.) He must preach something to himself, that the king adore a tree-altar. Thus kings must be most reverend in their gestures (p. 182). (2.) The king must hazard his sacred life and three kingdoms, his crown, royal posterity, to preserve sacred things, that is, anti-Christian Romish idols, images, altars, ceremonies, idolatry, popery. (3.) He must, upon the same-pain, maintain sacred persons, that is, greasy apostate prelates. The rest, I am weary to trouble the reader withall, but know ex ungue leonem.